5.  The applicant was born in 1955 and lives in Kraków.
6.  In 1998 the applicant was in a car accident which left him disabled. He suffered a fracture of the spine which resulted in paraplegia. He was also diagnosed with paralysis of the urethral and anal sphincters. Since then the applicant has suffered from severe back pain and sudden pain in the legs. From 2000 until 29 October 2006 the applicant had been using a special morphine pump made for him in Germany which had been implanted in his body and infused morphine directly into his spinal fluid.
7.  On 26 October 2006 the applicant was arrested by the police.
8.  On 27 October 2006 the Kielce District Court decided to remand him in custody in view of the reasonable suspicion that he had been leading an organised criminal gang, the “Kantor Wielopole” group, specialising mainly in money laundering and usury. The applicant’s lawyer argued before the court that the applicant’s state of health was incompatible with detention. However the court considered that the applicant could be detained and that the morphine pump he had been using could be managed in the detention centre. In particular, the doctors from the detention centre would be able to operate the pump and refill it with morphine.
9.  The applicant appealed against the decision.
10.  On 23 November 2006 the Kielce Regional Court dismissed his appeal. The court considered that if the applicant continued to receive treatment for his pain he could stay in detention.
11.  After the applicant’s arrest the morphine in his pump ran out, but the detention centre authorities filled it with sodium chloride (saline solution) as a substitute to keep the pump working.
12.  The applicant’s lawyer requested an expert opinion to evaluate his client’s state of health. He submitted that the court, when deciding on his detention, had been misled by the detention authorities as regards the functioning of his pump, and the expert opinion could clarify the importance of the latter in the treatment of the applicant’s chronic pain.
13.  On 24 January 2007 the applicant’s detention was extended by the Kraków Regional Court. The court also dismissed the applicant’s lawyer’s request for an expert opinion. As regards the applicant’s state of health, the court expressed, in one sentence, the opinion that it was not incompatible with detention. An appeal by the applicant against this decision was dismissed on an unspecified date.
14.  On 16 April 2007 the applicant’s detention was further extended. The court relied on the risk that a severe sentence would be imposed and on the possibility that the applicant would interfere with the proper course of the proceedings. As regards the applicant’s state of health, the court reiterated that he had available to him a specialised machine to administer the painkiller – the morphine pump – and that it was thus possible to treat him in the detention centre. Specialist cleaning of the pump would take place in the near future in the civil hospital in Radom or in the Warsaw Prison hospital. The court made no reference to the fact that the pump had not been working properly for at least four months.
15.  The applicant appealed against this decision. He argued that the pump had not been functioning properly since the beginning of his detention, as it had not been possible for the detention centre to refill the pump with the special mixture of morphine and other drugs put together individually for the applicant in a clinic in Germany. In place of the morphine the pump had been refilled with an ordinary saline solution, which had no painkilling properties. Instead, the applicant had been receiving strong painkillers (opiates) orally and as injections, which were addictive and had not been properly adapted to his needs. This treatment did not provide sufficient relief from pain; moreover, it caused narcotic stupor and possible dependence.
16.  The applicant’s appeal against this decision was dismissed on 11 May 2007 by the Kraków Court of Appeal. It found that the applicant’s lawyer had not substantiated his argument that the applicant’s medical care was inadequate.
17.  On 17 April 2007 the Kielce Regional Prosecutor dismissed the applicant’s request for a comprehensive examination by specialists in several medical fields and a medical opinion on his state of health.
18.  On 23 July 2007 Kraków Regional Court further extended the applicant’s pre-trial detention. The court repeated previously raised arguments almost word for word, namely that the applicant possessed a morphine pump which made his treatment in the detention centre possible.
19.  The applicant appealed against the decision, but on 8 August 2007 the Kraków Court of Appeal dismissed the appeal without making any reference to the applicant’s state of health.
20.  On 11 October 2007 the Kielce Regional Prosecutor dismissed the applicant’s application to have the investigation stayed because of his state of health.
21.  The applicant’s pre-trial detention was further extended in October 2007 and on 21 April 2008 by the Kraków Regional Court. In the latter decision the court stated as follows:
“As regards the state of health of [the applicant] the Detention Centre had not yet submitted their position on whether there had been circumstances posing a threat to the applicant’s life or health. Such a threat could not be credibly invoked by reference to his [morphine pump] breakdown as it had happened a long time ago and the Detention Centre had not informed [the court] of any negative consequence for the applicant’s life and health (except for stating that he was suffering pain). It should also be added that the court ordered an expert opinion on neurology to assess whether continued stay of [the applicant] in detention posed a threat to his life or health...”
22.  On 2 September 2008 the same court dismissed the applicant’s request for release.
23.  On an unspecified date the applicant was indicted before the Kraków Regional Court.
24.  On 8 October 2008 the Kraków Regional Court requested the Kraków Court of Appeal to extend the applicant’s detention beyond the statutory time‑limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego).
25.  On 24 October 2008 the Kraków Court of Appeal allowed the request and extended the applicant’s pre-trial detention until 30 May 2009. The court relied on a reasonable suspicion against the applicant, the severity of the penalty that might be imposed and a risk that he would interfere with the proper course of the proceedings. As regards the applicant’s state of health the court held as follows:
“Pre-trial detention does not pose a threat to the life or health of any of the co-accused, including [the applicant]. [The applicant] has been suffering severe pain since a fracture of the spine ten years ago, for which there is no treatment other than palliative care consisting of painkillers. Although efforts to implant a morphine pump have taken some time, [the applicant] is under the care of the prison health service, he takes opiates orally and the court always checks whether [the applicant] is able to participate in the trial. It cannot thus be said that [the applicant’s] detention poses a threat to his life or health, and this has been confirmed by the expert opinions. It would not be correct to assume that [the applicant] has been subjected to inhuman or degrading treatment, because the authorities have displayed due care in protecting [the applicant’s] health and in preventing his suffering, as they have created special conditions for his outdoor exercise, allowed him to buy food during his hunger strike, examined him (unless he opposed it, claiming that it was pointless), treated him by administering painkillers and taken steps to implant a new morphine pump.
However, since the suffering of [the applicant] is real and he has raised the possibility of having a procedure outside Poland which would bring it to an end, the situation should be resolved decisively so that justice is not achieved by [tolerating] the suffering of a human being. From the correspondence relating to the Detention Centre’s efforts it is not clear whether it is actually possible to carry out the medical intervention needed by [the applicant] and whether the drugs administered orally cause harmful side effects. Therefore the Court of Appeal instructs the Regional Court, which is supervising the applicant’s pre-trial detention, to urgently confirm with the Central Administration of Prisons (Centralny Zarząd Zakładów Karnych) whether the Polish prisons are able to continue [the applicant’s] detention without allowing his health to deteriorate, by organising a medical intervention that would allow the proper functioning of the morphine pump so that the pain suffered by [the applicant] would be at least substantially diminished. If the prison authorities are not able to secure the above and [the applicant] continues to suffer, the pre-trial detention should not be continued because it would become non-humanitarian. Even if [the applicant] were guilty of the crimes he is charged with, were to receive a severe punishment, or, if released, were to avoid justice, it would not be correct to achieve an act justified in the interests of justice by tolerating suffering which (allegedly) could have been prevented...”
26.  An appeal by the applicant against the decision was dismissed by the Kraków Court of Appeal on 13 November 2008.
27.  At the hearing on 14 May 2009 the Kraków Regional Court decided to lift the applicant’s pre-trial detention. The court decided that the detention of the applicant and his two co-accused was no longer necessary, particularly since eleven other co-accused had already been released. The court also found that the argument of severity of the possible sentence lost its importance with the lapse of time, relying on the case-law of the Court, and that detention should not amount to anticipation of the penalty of imprisonment. Similarly, it did not consider the risk of the applicant and other co-accused interfering with the course of proceedings decisive for extending the measure against them. As regards the state of health of the applicant, the court indicated that surgery was imminent and that this justified release. The court acknowledged that for a long time the prison authorities had been attempting to find a solution for the applicant, who at the same time had been telling them he was suffering pain. As a result, the situation could justify the Court of Appeal’s conclusion on 24 October 2008 that his pre-trial detention amounted to an inhumane measure and that “it would not be correct to achieve an outcome justified in the interests of justice by tolerating his suffering”.
28.  The applicant was released and travelled to a hospital in Germany, but given the high cost of the intervention he decided to have the new pump implanted in Poland.
29.  On 13 August 2009 the applicant had a new morphine pump implanted in the Kraków University Hospital.
30.  On 23 September 2009 the Kraków District Court decided to impose a preventive measure on the applicant, prohibiting him from leaving the country and ordering the seizure of his passport. The applicant’s trial is pending.
31.  A medical expert opinion of 31 May 2004, issued by the Jagiellonian University Chair of Forensic Medicine, sets out, in so far as relevant:
“[Since the applicant’s accident, despite having undergone numerous operations, he still suffers severe pain] and as a result has had a pump implanted which administers morphine twenty-four hours a day. However, as he submits, there are days when the pain is more severe and he injects additional doses of morphine himself. It should be made clear that a person suffering from chronic pain, no matter what the cause, who is treated with morphine in a stable dose administered by a pump, is able to function normally in society and would be able to take part in a trial. However, in the present case, when his pain worsens [the applicant] takes additional doses of morphine, which can change his perception of reality and in particular can influence the statements he makes. Also, according to [a medical certificate the applicant] is due to undergo another operation on his spine ... Taking the above into account it is established that [the applicant] is unable to participate in criminal proceedings for a period of six months (niezdolny do czynności procesowych).”
32.  The certificate issued on 15 December 2005 by the same Chair of Forensic Medicine confirmed that the applicant was unable to participate in the criminal proceedings for a period of twelve months.
33.  A medical opinion of 26 October 2006 confirmed that the applicant, who had been treated with the morphine pump, could participate in the proceedings but might need a break during questioning in the event of severe pain. The expert considered that a detention centre could not provide the necessary medical care and that the appropriate place to detain him would be a prison hospital.
34.  An information card from the Warsaw Detention Centre Hospital of 8 November 2006 confirmed that there were difficulties in obtaining the morphine needed to fill up the pump; therefore, the pump was filled up with sodium chloride to keep it functioning. The applicant was treated with the painkiller Tramal.
35.  An information card of 27 January 2007 from Radom Hospital confirmed that the applicant’s pump, during a period of three months, had been filled up with saline solution.
36.  It appears from a medical certificate of 16 November 2007 that the applicant’s morphine pump was filled up with morphine on 25 September 2007. From the documents invoked below, it is clear that there had been some irregularities in the functioning of the pump and it broke down either in October or November 2007.
37.  On 31 January 2008 the head of the surgical unit of the Kraków Detention Centre Hospital wrote to the Kraków Regional Court in reply to that court’s questions. He informed the court that the applicant was not a patient in the unit but that he had been placed there due to the fact that there was no suitable cell for a disabled person in the detention centre.
“4.  The present state of health of the applicant allows his stay in a prison, to be indicated by a court, which has a cell for disabled persons and on condition that his morphine pump is replaced. The chronic pain which the applicant has been suffering from for over ten years can be controlled only by the constant administration of a painkiller twenty-four hours a day. 5.  Other methods of treating the applicant’s pain tried by the hospital have been ineffective. This fact indicates that a surgical intervention is urgently required ‑ implantation of a morphine pump. Otherwise, the [applicant’s] chronic pain may constitute a ground for applying for release from detention.”
38.  According to a letter sent to the head of the hospital at the Kraków Detention Centre by the Palliative Medicine Institute in Warsaw on 6 February 2008 the applicant’s morphine pump had not been functioning correctly. It suggested enlisting the services of a clinic that specialised in treating pain and a diagnosis the deficiency in the functioning of the pump.
39.  According to the forensic medical opinion of 7 February 2008 the applicant, who had been using a wheelchair, could testify and take part in the trial, although transporting him to the Kielce Regional Court could increase his pain. The expert stated that “sudden pain attacks do not limit the [applicant’s] mental capacity, provided that in the event of severe pain [the court] would interrupt the hearing for a moment.”
40.  On 3 March 2008 the Kraków Detention Centre Hospital informed the court that the applicant’s morphine pump had been broken since 29 November 2007.
41.  On 12 March 2008 the director of the hospital at the Kraków Detention Centre informed the Kraków Regional Court that the applicant was receiving orally five different painkillers, including Tramal, which was also injected in case of need.
42.  In 2008 the Kraków Detention Centre asked several hospitals in Poland whether they could implant the morphine pump. After several negative replies, on 13 March 2008, the head of the neurosurgical department of Mielec Hospital informed the Kraków Detention Centre that they would be able to replace the applicant’s morphine pump. A hospital in Gdańsk also agreed to carry out that intervention but later refused for technical reasons.
43.  On 18 July 2008 the Jagiellonian University Pain and Palliative Care Clinic issued an expert opinion. The experts established that the applicant was suffering from attacks of severe pain, approximately once an hour, lasting from a few to a dozen minutes. The morphine pump had been implanted about eight years previously, but in October 2007 it had stopped functioning. The applicant had thus been receiving several types of painkillers administered orally and had injections of morphine and Tramal in case of severe pain.